The Copyright Fights Over The Australian Aborigine Flag Continue To Demonstrate Copyright Insanity

from the not-how-it's-supposed-to-work dept

It’s been nearly a decade since we last wrote about the Australian aborigine flag and the insane copyright issues surrounding it. That time, back in 2010, it involved the copyright holder of the flag forcing Google to edit the flag out of one of its famous Google doodles, where it had originally been included as part of an Australia Day celebration. The problem, as you might have guessed, is that the flag was designed in the early 1970s “as a symbol of unity and national identity” by Harold Thomas. Because it was the creation of a private individual, and not a government, Thomas claims to hold a copyright on the image. He didn’t do much with that copyright for decades, while the flag became an established symbol for indigenous Australians. Then, suddenly, he discovered he held the copyright and started making use of it.

Apparently, that’s ramped up even more in the last few months after Thomas did a licensing deal with a clothing company, followed by the traditional “sending of the cease-and-desist letters.”

In October 2018, Thomas granted WAM Clothing worldwide exclusive rights to use the flag on clothing. Late last week, it issued a series of ?cease and desist? notices to several companies, including the AFL, which uses the flag on jerseys for the Indigenous round, and an Aboriginal social enterprise which puts the profits of its clothing sales back into Aboriginal community health programs.

A spokesperson for WAM Clothing said it had been ?actively inviting any organisations, manufacturers and sellers who wish to use the Aboriginal flag on clothing to contact us and discuss their options?.

?Until WAM Clothing took on the licence Harold was not receiving recognition from the majority of parties, both here and overseas, who were producing a huge amount of items of clothing bearing the Aboriginal flag,? the spokesperson said.

Of course, some might argue that if you design a “flag” and declare that you did so “as a symbol of unity and national identity,” and then allow that flag image to be used for decades in order to establish it as identifying indigenous Australians it is (1) kind of an obnoxious move to then register a copyright, license it and start sending out legal threats and (2) so blatantly obviously against anything having to do with copyright law. Thomas did not design the flag because of the incentives of copyright law, as even he admits. The idea that he then gets to benefit from that law that had nothing to do with incentivizing the creation seems quite ludicrous.

Meanwhile, the mess has copyright lawyers in Australia suggesting that the government forcibly buy out Thomas’ copyright:

Former CEO of the Australian Copyright Council Fiona Phillips says the legal status of the Aboriginal flag is a ?unique situation? that requires a public policy solution.


?The Aboriginal flag is not just an artistic work, it?s a national symbol and is particularly important to Indigenous Australians,? said Phillips, who has also worked at the Australian Competition and Consumer Commission and as a government adviser on copyright law.

?The government could seek to compulsorily acquire copyright from Mr Thomas on public policy grounds. They could buy him out for the rights.?

Yes, the government could do that, and it would still be fairly crazy. It seems like a better idea is recognizing that if you push something out there as a symbol for all to use, and then decades later come back with copyright demands, the copyright claims should be laughed at, rather than made real. Tragically, Australia went in the other direction, leading to the present mess.

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Comments on “The Copyright Fights Over The Australian Aborigine Flag Continue To Demonstrate Copyright Insanity”

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That One Guy (profile) says:

'Unity's nice, sure, but think of all the MONEY...'

Of course, some might argue that if you design a "flag" and declare that you did so "as a symbol of unity and national identity," and then allow that flag image to be used for decades in order to establish it as identifying indigenous Australians it is (1) kind of an obnoxious move to then register a copyright, license it and start sending out legal threats and

I mean, that’s one way to put it I suppose, though I’d probably have gone with ‘a colossal dick move, and one that exposes just how repugnant, sleazy and greedy the artist in question is.’

Anonymous Coward says:

lmao at the dumbass comments in the "edit it out" article where somehow teh goog was oppressing indiginous peoples. my, how the truth becomes so apparent.

also sad is the info in the Guardian article concerning the licensor’s of this flag. puts lie to any further "protecting it for the Aboriginals" theories.

what a compleat nozzle is Thomas.

Anonymous Coward says:

Re: Re:

It’s not a surprise. Blaming "teh goog" is the go-to reaction for many people who can’t think past "break up Facebook". Google vacuuming up data (like other search engines, but for some reason those never get mentioned) suddenly means they’re responsible for everything from Section 230 to ebola epidemics. Game developer takes down videos critiquing their crappy product by using the DMCA and copyright law? Because fuck Google!

Thomas’ claim is up there with passing patent ownership onto Native American tribes – a thin veneer of superficial humanitarianism masquerading over the horseshit.

Uriel-238 (profile) says:

Australian copyright kills

After the whole ordeal regarding the Land Down Under which featured a reference to Kookaburra that became a copyright lawsuit (instigated by non-original IP owners) which stressed out flutist Greg Ham and Jim Hay, father to songwriter Colin Hay, my feelings regarding Australian copyright law are sheer embitterment.

And that’s before we get to the bit about contemporary copyright rules serving only as a global rent-seeking racket.

Anonymous Coward says:

Re: Australian copyright kills

Not to say that the country isn’t capable of level-headedness at crucial instances, mind you. iiNet has consistently beat back the likes of Graham Burke and the government has basically told its citizenry to use VPNs to access Netflix despite what Murdoch would think.

I’ll agree with you that I share a similar level of cynicism, particularly towards the "moral" aspect of copyright. Shady shit such as Hollywood accounting and Prenda Law, I imagine, would destroy any modicum of respect any reasonable person has for copyright once explained. Unfortunately there are plenty who would profit from ignorance of such truths.

Anonymous Coward says:

Re: Re: Australian copyright kills

Many copyright holders are indies like me who just want complete control over our work and any revenue it might generate.

I have very rarely even filed DMCA notices, let alone sued anyone for piracy. The one case where I did file DMCA was when the full text of my work was not only pirated, but the title, cover art, and name of the author were changed. The works had been downloaded at least 100,000 times according to the pirate site.

Anonymous Coward says:

Re: Re: Re: Australian copyright kills

I’ve also given away a great deal of my work, after a certain period of time, or when I wanted a big audience more than revenue. That should be MY call, not that of some pirate who is grifting from my work. I’ve also used ad revenue to support my work, and sometimes given it away to those willing to wait for it. As a creator, I don’t concern myself with the business stuff until after a work has been created. While I’m creating it, I’m an artist and nothing more or less.

I wouldn’t mind seeing copyright limited to seven years. That’s more than enough. I’d also rather see downloading treated more like an ASCAP violation or even with penalties limited to triple the retail price.

Uriel-238 (profile) says:

Re: Re: Re:2 "Indies like me"

I don’t think the notion of copyright is bad generally, but the extreme copyright laws we have are commonly abused, and our legal systems do seem to be directed towards a world where all ideas are owned, the diametric opposite of a robust public domain.

Our current system causes more and worse problems than it solves.

Anonymous Coward says:

Re: Re: Re: Australian copyright kills

“Many copyright holders are indies like me who just want complete control over our work and any revenue it might generate.”

You ARE NOT ENTITLED TO COMPLETE CONTROL and all the revenue. If you want that then stick it in a room under the doona. You are entitled to fair compensation for your work just like anybody, but if you want to live of the proceeds of a single work for the rest of your life then you are not entitled to that.

You don’t get control. Nobody gets control of stuff that other people pay you for. I pay then I get some control whether its a hammer, car, painting, story or design.

Want money for the rest of your life to buy stuff, raise a family and pay bills? Do what the rest of us do – work all the way through. And keep working. Keep generating “value” to society. Keep delivering something of use to others. Keep generating new content and get paid for the new content (if its worthwhile and entertaining).

Don’t expect to be given money for every just because you had a single good idea last week or 50 years ago.

Anonymous Coward says:

Re: Re:

My biggest issue with copyright is the person who created it is long dead and now it’s family members or corporations who now own it and live off of the dead persons work. It should be put into the Public Domain. I think anything copyrighted should be put into the Public domain after 20 years MAX. You’ve had long enough to make money from it, create something NEW.

Anonymous Coward says:

Re: Now the Phrase “Makes Sense”

Gives us a bit of a break. We’ve being trying to emulate our big brothers USA and UK since WWII. Moving into the 21st Cent we just want the same fucked up civil liberties, massive immigration, stalling economy, and fuck rent-seeking "imaginary" property laws as you guys.

We’ve even started emulating your racism, shootings and hate-crimes in the last decade. Aren’t you proud of your little brother for catching up so quickly?

Optical Point (profile) says:

Re: Re: Now the Phrase “Makes Sense”

Just because I’m an American doesn’t mean I like racism, shootings, and hate-crimes. In fact, I’m not a fan of racism or shootings or hate-crimes or the ignorant crap that the country I live in practices.

I believe in treating everyone with respect. I would never violate anybody’s privacy nor commit any illegal actions. I respect nature and I prefer to be kind and generous, especially holding the door for anyone.
If somebody falls, I help them up. If somebody drops something, I pick it up and give it back to them immediately. If somebody can’t afford to buy something, I’d give them the money to buy it without charge, and without asking for anything in return.

I’m a 19 year old that ain’t afraid to show kindness and respect to everyone around me.

Anonymous Coward says:

Who's going to 'own' all the dead people 50 year after death?

Won’t you think of the poor starving DEAD artist, now please pay 1/10 of your monthly income for listening to our wonderful ‘muzak’ while traveling on our subway (fee automatically deducted).

Don’t worry, we only play muzak from dead people that we own, so we are not infringing on anyone’s copyrights, just your lives with our rent seeking, life destroying, with what would be criminal behavior (if we were ‘gangsters’ instead of **AA’ers)…

G Thompson (profile) says:

Oh dear…. where to begin

Firstly, Mr Thomas did NOT register it after the fact, copyright in Australia like everywhere else other than the USA does not require registration and becomes registered at moment of creation.

The artist in question created it for a public competition in the 70’s with the Government of the day acknowledging that the design would be owned by the artist.

The Artist himself is an Australian Aboriginal and has been fighting for his right to have the design (It is NOT a National Flag whatsoever and never has been under the Flag Act so please stop calling it one) used as he wants it used.

It has been used by major corporate organisations to make themselves look good in teh eyes of the Aboriginal culture here and most actual Aborigines (other than those who have another agenda) do not care for the flag anyway since it is NOT a cultural icon and never would be under there culture.

In the 2000’s after a long and protracted legal fight the High Court acknowledged that it was Thomas’s design and that he owned the copyright on it and had since creation – something that was common knowledge but corporations doiidn’t want. Since then he has been fighting for his rights to use the design in the ways that he sees fit – which as we all know is the actual purpose of copyright.

Recently he went into exclusive licence with an Australian clothing manufacturer who have been very active with requesting and trying to mediate (not bully) all the corporate organisations who have been using this design for there own purposes. The AFL is a mega million dollar sporting corporation not unlike similar American Sporting Organisations in GridIron. They and others refused point blank to pay a cent . Therefore cease & desist was sent.

There is nothing ontoward about any of this, and as he himself is an Aboriginal Artist who is not very well off at all why people are going on about something that is the very basis of what copyright was meant to do is worrying.

remember.. This is NOT a national icon.. never has been (since the govt has always known it was a private design) and the Govt can not under our Constitution acquire it whatsoever.. Even if they did it would be a political shit storm since it would be the Australian Govt compulsorily acquiring property of an Aborigine which is so similar to what EXACTLY occured 200yrs ago it’s not funny!

When you have KNOWINGLY breached copyright for commercial purposes for decades and then cry foul for ‘cultural reasons’ when its not even your culture.. there’s a fucking problem. Though I see the PR Spin has made its way even to Techdirt

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